Citation NR: 9713879
Decision Date: 04/24/97 Archive Date: 05/01/97
DOCKET NO. 94-09 199 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUES
1. Entitlement to a compensable evaluation for a deviated
nasal septum.
2. Entitlement to an effective date earlier than December 1,
1964 for service connection for a deviated nasal septum.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Todd A. Sinkins, Associate Counsel
INTRODUCTION
The appellant served on active duty from September to October
1941 and from August 1942 to October 1945.
This action was previously before the Board of Veterans’
Appeals (the Board) in June 1996 on appeal from an August
1993 rating decision of the Department of Veterans Affairs
(VA) Portland Regional Office (RO), which, in pertinent part,
declined to reopen a claim of service connection for a
deviated nasal septum. At that time, the Board remanded the
case to the RO for adjudication of the issue of entitlement
to service connection for a deviated septum. Thereafter, in
January 1997, the RO granted service connection and assigned
a noncompensable evaluation for a deviated nasal septum,
effective from December 1, 1964. The Board recognizes that
the U.S. Court of Veterans Appeals (Court) has held that an
appeal of a service-connection claim includes all benefits
potentially available that stem from the essential elements
of the claim. Holland v. Brown, 9 Vet.App. 324, 328-29
(1996). In March 1997, the appellant’s representative,
correctly cited to the above holding set forth in Holland,
and stated that the appellant disagreed with the initial
noncompensable evaluation and December 1, 1964, effective
date assigned for service connection for a deviated nasal
septum. Thus, the issues currently before the Board in
appellate status are entitlement to a compensable evaluation
for a deviated nasal septum and an effective date earlier
than December 1, 1964 for service-connected deviated nasal
septum.
Appellate consideration of the issue of entitlement to a
compensable evaluation for a deviated nasal septum is
deferred pending completion of further evidentiary
development, as set forth in the remand portion of this
decision below.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that he is entitled to an effective
date earlier than December 1, 1964 for service connection for
a deviated nasal septum.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the appellant's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against an effective date earlier than
December 1, 1964 for service connection for a deviated nasal
septum.
FINDINGS OF FACT
1. The February 1965 VA hospital discharge summary, accepted
by the RO as the appellant’s claim of service connection for
deviated nasal septum, reflects that he was admitted thereto
for treatment of a deviated nasal septum on December 1, 1964;
the RO did not receive any formal claim of service connection
for a deviated nasal septum.
2. No VA treatment records reflect treatment for a deviated
nasal septum prior to December 1, 1964, and there is no
evidence that the RO received any written communication from
the appellant reflecting that he claimed entitlement to
service connection for a deviated nasal septum prior to
December 1, 1964.
CONCLUSION OF LAW
The criteria for an effective date of service connection for
a deviated nasal septum, prior to December 1, 1964, have not
been met. 38 U.S.C.A. §§ 5107, 5110 (West 1991 & Supp.
1996); 38 C.F.R. § 3.400 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
A review of the appellant’s service medical records reveals
that he received in-service treatment for a deviated nasal
septum in February and October 1943, and later in December
1944. His initial claim of service connection for a deviated
nasal septum was construed by the RO as having been received
upon receipt of a February 1965 VA discharge summary
reflecting that he was admitted to a VA hospital for
treatment of a deviated septum on December 1, 1964.
Thereafter, entitlement to service connection for a deviated
nasal septum was denied in a May 1965 rating decision.
Notification thereof was never furnished the appellant.
The RO received the appellant’s application to reopen his
claim of service connection for a deviated nasal septum in
April 1993. He thereafter perfected an appeal as to an
August 1993 rating decision declining to reopen his claim of
service connection for a deviated nasal septum. In June
1996, the claim was remanded by the Board for adjudication of
the issue of service connection for a deviated nasal septum
because the initial May 1965 denial of service connection was
not a final decision. Thereafter, in January 1997, the RO
granted service connection for a deviated nasal septum,
effective from December 1, 1964, the date the appellant was
initially admitted to a VA facility for treatment of a
deviated nasal septum.
Unless specifically provided otherwise, the effective date of
an award of compensation based on an original claim, a claim
reopened after final adjudication, or a claim for increase
shall be fixed in accordance with the facts found, but shall
not be earlier than the date of the receipt of the
application therefor. 38 U.S.C.A. § 5110(a) (West 1991).
This statutory provision is implemented by regulation
providing that the effective date for compensation will be
the date of the receipt of the claim or the date the
entitlement arose, whichever is later. 38 C.F.R. § 3.400
(1996).
With regard to a claim of direct service connection, the
effective date will be the day following separation from
active service or date entitlement arose if claim is received
within 1 year after separation from service; otherwise, date
of receipt of claim, or date entitlement arose, whichever is
later. Separation from service means separation under
conditions other than dishonorable from continuous active
service which extended from the date the disability was
incurred or aggravated. 38 C.F.R. § 3.400(b)(2).
An informal claim is any communication or action, indicating
an intent to apply for one or more benefits under the laws
administered by the Department of Veterans Affairs, from a
claimant, his or her duly authorized representative, a Member
of Congress, or some person acting as next friend of a
claimant who is not sui juris may be considered an informal
claim. Such informal claim must identify the benefit sought.
Upon receipt of an informal claim, if a formal claim has not
been filed, an application form will be forwarded to the
claimant for execution. If received within 1 year from the
date it was sent to the claimant, it will be considered filed
as of the date of receipt of the informal claim. 38 C.F.R.
§ 3.155.
Under some circumstances, the date of VA outpatient or
hospital examination or date of admission to a VA or
uniformed services hospital will be accepted as the date of
receipt of an informal claim. 38 C.F.R. § 3.157(b)(1). This
may be done so long as a formal claim for compensation has
previously been allowed, or a formal claim for compensation
disallowed for the reason that the service-connected
disability is not compensable in degree. 38 C.F.R. §
3.157(b).
In this case, a February 1965 VA hospitalization report
reflects that the appellant was first admitted on December 1,
1964, for treatment of a deviated nasal septum. No earlier
VA treatment records are of record, reflecting treatment for
a deviated nasal septum.
By law, the effective date for an original claim of service
connection is the date of the receipt of the claim or the
date the entitlement arose, whichever is later. 38 C.F.R.
§ 3.400. In this case, the Board did not receive a formal
claim of service connection for a deviated nasal septum prior
to the May 1965 denial. However, the RO chose to liberally
construe February 1965 VA discharge summary as an informal
claim of service connection, and in January 1997, the RO
assigned the earliest date of hospitalization at a VA
facility for treatment for his deviated nasal septum as the
effective date for service connection. Cf. 38 C.F.R.
§§ 3.155, 3.157. Thus, the initial claim of service
connection was not received by the Board until almost 20
years after the appellant’s separation from service. See
38 C.F.R. § 3.400(b)(2). There is no evidence of record that
the VA received a claim of service connection for a deviated
nasal septum prior to December 1, 1964. Likewise, there is
no evidence of record that can be construed as an informal
claim of service connection for a deviated nasal septum prior
to December 1, 1964. Thus, the preponderance of the evidence
is against the appellant’s claim for an effective date
earlier than December 1, 1964 for the grant of service
connection for a deviated nasal septum.
ORDER
An effective date prior to December 1, 1964 for service
connection for a deviated nasal septum is denied.
REMAND
The initial question before the Board is whether the
appellant has submitted a well-grounded claim for an
increased evaluation for a deviated nasal septum pursuant to
38 U.S.C.A. § 5107. A well-grounded claim is one which is
plausible or capable of substantiation. Murphy v. Derwinski,
1 Vet.App. 79, 81 (1990). When a claimant is awarded service
connection for a disability, and subsequently appeals the
RO’s initial assignment or rating for that disability, the
claim continues to be well grounded as long as the rating
schedule provides for a higher rating and the claim remains
open. Shipwash v. Brown, 8 Vet.App. 218, 224 (1995). In
this case, since the appellant’s appeal stems from the
initial evaluation assigned following the award of service
connection in January 1997, his claim for an increased
evaluation for a deviated nasal septum is well grounded.
The VA has a duty to assist the appellant in the development
of facts pertinent to his claim. 38 U.S.C.A. § 5107(a). The
Court has held that the duty to assist the veteran in
obtaining and developing available facts and evidence to
support his claim includes obtaining adequate VA examination.
This duty is neither optional nor discretionary. Littke v.
Derwinski, 1 Vet.App. 90 (1990). The fulfillment of the
statutory duty to assist includes conducting a thorough and
contemporaneous medical examination, one which takes into
account the records of prior medical treatment, so that the
evaluation of the claimed disability will be a fully informed
one. Caffrey v. Brown, 6 Vet.App. 377, 381 (1994); Green v.
Derwinski, 1 Vet.App. 121, 124 (1991).
In this regard, the Court has held that where the veteran
claims that a disability is worse than when originally rated,
and the available evidence is inadequate to evaluate the
current state of the condition, VA must provide a new
examination. Gregory v. Brown, 8 Vet.App. 563, 570 (1996),
Weggenmann v. Brown, 5 Vet.App. 281, 284 (1993); Olson v.
Principi, 3 Vet.App. 480, 482 (1992), citing Proscelle v.
Derwinski, 2 Vet.App. 629, 632 (1992). In this case, since
the appellant has never received a VA medical examination for
his service-connected deviated nasal septum, a remand is
necessary so that he may be afforded a VA medical
examination.
To ensure that the VA has met its duty to assist the
appellant in developing the facts pertinent to the claim,
this case is REMANDED for the following action:
The appellant should be afforded a VA
ear, nose, and throat examination to
determine the nature and extent of his
service-connected deviated nasal septum.
All necessary testing should be
performed. The claims folder must be
made available to the examiner in
conjunction with the examination. The
examiner should be requested to review
the record and express an opinion as to
the severity of the appellant's deviated
nasal septum based on the objective
evidence of record. The examiner should
be requested to distinguish between all
symptomatology attributable to his
service-connected deviated nasal septum
relative to all of the symptomatology
attributable to his nonservice-connected
sinusitis. If this cannot be determined,
the examiner should so state for the
record.
When the above requested development is completed, the case
should again be reviewed by the RO. If the benefit sought on
appeal is not granted, the appellant and his representative
should be provided a supplemental statement of the case and
afforded an opportunity to respond. The case should then be
returned to the Board for further appellate consideration.
J. F. GOUGH
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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